Citation Nr: 1003009
Decision Date: 01/21/10 Archive Date: 02/01/10
DOCKET NO. 04-32 504 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to service connection for a stomach
disability.
2. Whether new and material evidence has been received to
reopen the claim of entitlement to service connection for
a back disability, and, if so, whether service connection
is warranted.
3. Entitlement to an increased evaluation for
chondromalacia of the right and left knees with patellar
ligament strain, each currently rated 10 percent
disabling.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. Lipstein, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1985 to June
1990.
This matter comes to the Board of Veterans' Appeals (Board)
from a December 2002 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO). A notice of
disagreement was filed in October 2003, a statement of the
case was issued in July 2004, and a substantive appeal was
received in September 2004. The Veteran testified at
hearings before the RO in April 2009 and before the Board in
October 2009.
The issue of an increased evaluation for chondromalacia of
the bilateral knees with patellar ligament strain is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. In October 2009, prior to the promulgation of a decision
in the appeal, the Veteran withdrew the appeal of the issue
of entitlement to service connection for a stomach
disability.
2. A September 1994 Board decision denied service connection
for a back disability.
3. In October 2001, the Veteran filed a request to reopen
his claim of service connection for a back disability.
4. Additional evidence received since the September 1994
Board decision is new to the record, relates to an
unestablished fact necessary to substantiate the merits of
the claim of service connection, and raises a reasonable
possibility of substantiating the claim.
5. The Veteran has a back disability which began in service.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a Substantive Appeal have
been met with respect to the issue of entitlement to service
connection for a stomach disability. 38 U.S.C.A.
§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204
(2009).
2. The September 1994 Board decision is final. 38 U.S.C.A.
§ 7104 (West 2002).
3. New and material evidence has been received since the
September 1994 Board decision, and the claim of entitlement
to service connection for a back disability is reopened.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009).
4. A back disability was incurred in service. 38 U.S.C.A.
§§ 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.304 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Stomach Disability
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. Except for appeals withdrawn
on the record at a hearing, appeal withdrawals must be in
writing. 38 C.F.R. § 20.204. Withdrawal may be made by the
appellant or by his authorized representative. 38 C.F.R.
§ 20.204.
As noted, at the October 2009 Board hearing, the Veteran
withdrew his appeal for service connection for a stomach
disability. Thus, there remain no allegations of errors of
fact or law for appellate consideration with respect to this
issue. Accordingly, the Board does not have jurisdiction to
review the appeal on this matter, and the issue of
entitlement to service connection for a stomach disability is
dismissed.
Back Disability
New and Material Evidence
The Board denied the Veteran's claim for a back disability in
September 1994 and that decision is final. See 38 U.S.C.A.
§ 7104; 38 C.F.R. § 20.1100. The claimant's request to
reopen his claim was received in October 2001. At the time
of the September 1994 Board decision, the Veteran's service
treatment records, as well as VA examinations, were on file.
Service treatment records reflected that the Veteran
complained of back pain during service. The VA examination
findings revealed no back disability.
In October 2001, the Veteran filed a claim to reopen
entitlement to service connection for a back disability. As
a general rule, a claim shall be reopened and reviewed if new
and material evidence is presented or secured with respect to
a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156. When a veteran seeks to reopen a final decision,
the first inquiry is whether the evidence presented or
secured after the last disallowance is "new and material."
Under 38 C.F.R. § 3.156(a), new evidence means evidence not
previously submitted to agency decision makers. Material
evidence means evidence that, by itself or when considered
with previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened and must raise a
reasonable possibility of substantiating the claim.
38 C.F.R. § 3.156(a).
When determining whether a claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992). In order for
evidence to be sufficient to reopen a previously denied
claim, it must be both new and material. If the evidence is
new, but not material, the inquiry ends and the claim cannot
be reopened. Smith v. West, 12 Vet. App. 312 (1990).
Furthermore, "material evidence" could be "some new
evidence [that] may well contribute to a more complete
picture of the circumstances surrounding the origin of the
veteran's injury or disability, even where it will not
eventually convince the Board to alter its rating decision."
Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it
is determined that new and material evidence has been
submitted, the claim must be reopened and the VA may then
proceed to the merits of the claim on the basis of all the
evidence of record.
The evidence that must be considered in determining whether
new and material evidence has been submitted in this case is
that evidence added to the record since the issuance of the
Board decision in September 1994. The Board notes here that
the RO determined that new and material evidence was not
received to reopen the claim. However, regardless of the
RO's determination as to whether new and material evidence
was received to reopen the claim, the Board is not bound by
that determination and must nevertheless consider whether new
and material evidence has been received. Jackson v.
Principi, 265 F.3d 1366 (Fed. Cir. 2001).
Evidence received since the September 1994 decision denying
service connection is new and material. Specifically, since
the prior denial, a June 2009 letter from Dr. M.A.R. reflects
that the Veteran has degenerative changes of the lumbar spine
which are probably related to service. The new evidence
bears directly and substantially upon the specific matter
under consideration, and is so significant that it must be
considered in order to fairly decide the merits of the claim
of service connection. The claim, therefore, is reopened.
38 U.S.C.A. § 5108.
Service Connection
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from a
disability resulting from an injury suffered or disease
contracted in the line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in the line
of duty, in active military, naval, or air service.
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury
incurred in service alone is not enough. There must be
chronic disability resulting from that injury.
If there is no showing of a resulting chronic condition
during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b). Service connection may
also be granted for any disease diagnosed after discharge,
when all evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d). Generally, to prove service
connection, the record must contain: (1) Medical evidence of
a current disability, (2) medical evidence or in certain
circumstances, lay testimony, of an in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus or a relationship between a current disability and
the in-service disease or injury. Pond v. West, 12 Vet. App.
341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).
Service treatment records dated in June 1986, July 1986, and
February 1989 reflect that the Veteran complained of back
pain
A letter from Dr. M.A.R. dated in June 2009 reflects that Dr.
M.A.R. diagnosed minor hypertrophic degenerative changes at
the second and third intervertebral disc spaces. Dr. M.A.R.
opined that the lumbar spine disability is probably related
to an injury which occurred during the Veteran's military
service.
We have carefully considered the Veteran's testimony, as well
as all of the other evidence, and find that the record
supports the conclusion that his back disability began during
service. Accordingly, the Board finds that there is a
preponderance of evidence that favors the Veteran's claim of
service connection for a back disability.
Veterans Claims Assistance Act of 2000
In closing, there is no need to undertake any review of
compliance with the Veterans Claims Assistance Act of 2000
(VCAA) and implementing regulations in this case since there
is no detriment to the appellant as a result of any VCAA
deficiency in view of the fact that the full benefit sought
by the appellant as to the issue on appeal is being granted
by this decision of the Board. See generally 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a),
3.159 and 3.326(a).
ORDER
Service connection for a stomach disability is dismissed.
New and material evidence having been submitted, the claim of
service connection for a back disability is reopened.
Service connection for a back disability is granted.
REMAND
The Veteran has alleged that his bilateral knee disabilities
have worsened since his last VA examination in December 2007.
The VA's General Counsel has indicated that when a claimant
asserts that the severity of a disability has increased since
the most recent rating examination, an additional examination
is appropriate. VAOPGCPREC 11-95 (April 7, 1995). See Olsen
v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v.
Derwinski, 2 Vet. App. 629, 632 (1992) (holding that, where
the veteran claims that a disability is worse than when
originally rated, and the available evidence is too old to
adequately evaluate the current state of the condition, VA
must provide a new examination). Thus, the Board is of the
opinion that the Veteran should be afforded an additional VA
examination.
Accordingly, the case is REMANDED for the following actions:
1. The Veteran should be afforded an
examination of his knees to ascertain the
severity and manifestations of his
service-connected disabilities and the
degree of impairment these disabilities
cause in his capacity for performing
substantially gainful employment. Any
and all indicated evaluations, studies
and tests deemed necessary by the
examiner should be accomplished. The
examiner is requested to review all
pertinent records associated with the
claims file, and following this review
and examination, the examiner is
requested to report complaints and
clinical findings pertaining to the
Veteran's knees in detail. The examiner
is further requested to comment on the
presence or absence of flare-ups of pain,
weakness, excessive fatigability with
use, incoordination, painful motion and
pain with use, and attempt to offer an
opinion as to whether these factors
produce any additional limitation of
motion, and, if possible, in the
additional degrees of limitation of
motion. Lastly, the examiner is
requested to offer an opinion as to the
degree of functional impairment the
Veteran's service-connected knee
disabilities produce in his capacity for
performing substantially gainful
employment. However, if the requested
opinion(s) cannot be provided without
resort to speculation, the examiner
should so state and explain why an
opinion cannot be provided without resort
to speculation. A clear rationale for
all opinions would be helpful and a
discussion of the facts and medical
principles involved would be of
considerable assistance to the Board.
Since it is important "that each
disability be viewed in relation to its
history[,]" 38 C.F.R. § 4.1, copies of
all pertinent records in the Veteran's
claims file or in the alternative, the
claims file, must be made available to
the examiner for review.
2. After completion of the foregoing,
readjudicate the claim of an increased
rating for chondromalacia of the
bilateral knees with patellar ligament
strain. If the benefits sought on appeal
remain denied, the Veteran and his
service representative should be provided
a supplemental statement of the case. An
appropriate period of time should be
allowed for response.
The Veteran and his representative have the right to submit
additional evidence and argument on the matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp.2009).
______________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs